OSHA’S Emergency Temporary Standard is Postponed Pending Review

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) that requires employers who employ 100 or more employees to either mandate their workforce to receive the COVID-19 vaccination or require weekly COVID-19 testing and face coverings. Certain businesses and individuals quickly challenged the ETS, which led to certain U.S. Courts of Appeals to issue stays to halt the implementation and enforcement of the ETS. 

As the stay lifted early this year, those challenging the ETS sought emergency relief from the United States Supreme Court. On January 13, 2022, the Supreme Court granted emergency relief to stay the implementation of OSHA’s ETS. The Court’s decision postponed implementation and enforcement of the ETS pending the Sixth Circuit’s review and, potentially, a return visit to the United States Supreme Court.

Notably, in granting the stay, the Court held in a 6-3 decision that the challenge to the ETS is likely to succeed on the merits because OSHA lacked the authority to issue the ETS mandate. The Court explained that OSHA is allowed to “set workplace safety standards, not broad public health measures.” Because the risk of contracting COVID-19 is not only in the workplace but also in many other public settings, COVID-19 “is not an occupational hazard.” Thus, the Court held that allowing OSHA to broadly regulate “the hazards of daily living” would expand OSHA’s authority beyond what Congress allowed.

While likely indicative of what may come, the Supreme Court’s decision is not the final say. Instead, the Court directed the Sixth Circuit to consider the substantive validity of the ETS. 

But, with the stay in place, employers have additional time to prepare for compliance should courts uphold the ETS, which appears unlikely. Because of the Court’s decision, OSHA may issue a new or limited ETS on the subject matter. 

Further, the Court’s decision does not affect state and local COVID-19 vaccination and testing requirements. Employers are not in the clear yet and should continue to monitor updates until there is a final resolution on this matter. Companies need to continue to comply with all local and state regulations regarding COVID testing, vaccine protocols and sick leave. Leaders should have plans in place in the off chance the ETS is actually passed to ensure they don’t fall victim to violations.

If you need assistance or guidance regarding the Supreme Court’s decision or for any other questions or concerns, please reach out to Moye White’s Labor and Employment Group.

Portions of this article were originally published in Corporate Compliance Insights.


Caleena S. Braig

Vice-Chair, Litigation Section

Caleena S. Braig